Scalia flubs Supreme Court dissent

Supreme Court Justice Antonin Scalia’s dissent in Tuesday’s Clean Air Act case contained plenty of contempt for his colleagues, but it also contained something else – a mistake.

The decision upheld an Environmental Protection Agency regulation managing interstate air pollution. In his dissent, Scalia accused the six justices who upheld the rule of writing a decision that “feeds the uncontrolled growth of the administrative state at the expense of government by the people,” and of approving an “undemocratic revision of the Clean Air Act.” But Jonathan Adler, a professor at the Case Western University School of Law and a writer for the conservative law blog Volokh Conspiracy, noted that Scalia’s dissent misstates the context of a 2001 Clean Air Act case, Whitman v. American Trucking Assns., Inc., in which Scalia himself actually wrote the opinion.

Scalia identified the case as one in which the EPA sought to consider cost-effectiveness in developing regulations when the reverse was true.

“Whitman did involve the claim that the Clean Air Act allowed the EPA to consider costs in setting the [National Ambient Air Quality Standards], but it was not the EPA that argued in favor of considering costs,” Adler wrote. “Rather, it was the industry petitioners who argued that the Supreme Court should overturn D.C. Circuit precedent precluding the consideration of costs in setting NAAQS, and it was the EPA that argued (successfully, as it turned out) that the Clean Air Act precluded the consideration of costs.”

Talking Points Memo also noted Scalia’s error. Adler wrote that Scalia’s dissent has since been corrected.